Appealing Your Case…the Basics.

“An Appeal is a request that a higher Court review the decision of the lower Court. A lot of family law decisions are appealed, though very few are successful or result in significant change.”

Matthew Thompson after admittance to the U.S. Supreme Court.

What’s required prior to filing an Appeal?

A Final Order. A Final Order is one which decides all of the issues and leaves nothing more for the Court to decide. A Temporary Order(clickable), for example, is not appealable. It is not a Final Order.

How do you file your appeal?

In Divorce Court there are several options available. The first option is filing what is called a Motion for New Trial*. This is filed in the same Court, with the same Judge and must be filed within 10 days of the entry of the Final Order. This is not merely a chance for a “second bite at the apple,” but rather is to point out significant errors of fact and/or law upon which the Judge relied, which resulted in the wrong decision. These are routinely denied. They are denied for several reasons and primarily because the Judge just decided the case and the matter is “fresh.”.

(*There has been some debate over whether a Motion for New Trial is required to perfect an appeal. The most recent answer is that it is not required in family law matters, however it is a good idea to file one out of an abundance of caution. Please rely upon your attorney for making this decision.)

After the Motion for New Trial is ruled upon by the Court you may file a Notice of Appeal. This is filed in the Divorce Court (Chancery Court) and must be filed within 30 days of either the Final Judgment, or within 30 days of the ruling on the Motion for New Trial, whichever is later.

All appeals are filed with the Mississippi Supreme Court (MSSC). From there the MSSC decides whether to hear the case or assign it to the Court of Appeals (COA). The majority of the Family Law cases are assigned to the COA. There is a filing fee, as well. Notice of the Appeal is sent to the original Court that ruled, the Judge, the MSSC, and the other party.

The Appeal process is deadline driven.

There are deadlines to file the appeal, to pay an estimate for preparing the transcript, to designate the record. The other party may cross-appeal.

After the initial flurry, a briefing schedule is issued.

The one appealing, the Appellant, has 40 days to file their brief and can get multiple extensions of 30, 20, and 10 days. The Appellee, the one responding to the appeal, then has 30 days to reply and can get extensions of 30, 20, and 10 days. The Appellant can then file a reply brief within 14 days, with up to one extension of 30 days. After all the briefs are submitted the Court may allow Oral Argument, if it is a case of first impression or complex, and the Court may not. Once the briefs are submitted the Court has 270 days to rule. They rule in a written Opinion that is handed down on either Tuesdays or Thursdays after 1:00 pm.

Even if you “win” you may only get a “do-over.” Most appeals are denied. When they are granted it usually results in the matter being sent back to the same Judge that ruled on the case to begin with, with instructions to reconsider certain facts or law. It does not mean you win and they lose.

Matthew Thompson is a family law appellate attorney that has handled numerous appeals.